PROCEDURES FOR TAKING DEPOSITIONS

For oral depositions the accused has the right to do the following:

. Be present except when (1) the accused, absent for good cause, fails to appear after notice of time and place of the deposition, (2) the accused is disruptive, or (3) the deposition is ordered instead of producing a witness on sentencing and the authority ordering the deposition determines that the interests of the parties and the court-martial can be served adequately by an oral deposition without the presence of the accused . Be represented by counsel

Each witness giving an oral deposition is examined under oath. The scope and manner of examination and cross-examination are such as would be allowed in the trial itself. The government makes available to each accused, for examination and use at the taking of the deposition, any statement of the witness that is in the possession of the government and that the accused would be entitled at trial.

For written depositions, the accused has the right to be represented by counsel for the purpose of taking a written deposition, except when the deposition is taken for use at an SCM. No party has a right to be present at a written deposition. The party requesting a written deposition submits to the opposing counsel a list of written questions to be asked of the witness. Opposing counsel examines the questions and is allowed a reasonable time to prepare cross-interrogatories and objections, if any.

The normal steps to be followed in the taking of a written deposition are as follows:

1. The side desiring the deposition gives the other side written notice that the deposition has been authorized by the CA, advises of the time and place it will be taken and the name and address of each person to be examined, and furnishes a list of written interrogatories to be asked the deponent.

2. The opposing counsel prepares cross-interrogatories and objections.

3. The interrogatories, objections, and crossinterrogatories are submitted to the CA, or to the court if it is in session.

4. The TC prepares the Interrogatories and Deposition, DD Form 456, including therein the interrogatories, cross-interrogatories, and objections.

5. The TC sends the deposition form to the command nearest the deponent with a cover letter, addressed return envelope, and a subpoena for a civilian witness, if necessary.

6. The command receiving the deposition form appoints a deposition officer and a reporter, if necessary.

7. Oral answers are recorded on the deposition form, even if an objection is set forth to the questions. The court will rule on the objections at the trial. The deposition officer must not make any rulings on the objections.

8. The deponent examines the deposition and signs it.

9. The deposition officer authenticates the deposition and returns it to the TC.

The normal steps to be followed in the taking of an oral deposition are as follows:

1. The side desiring the deposition gives the other side written notice that the deposition has been authorized by the CA, advises of the time and place it will be taken, and provides a memorandum stating the reasons for the deposition and the points desired to be covered in an oral examination of the deponent.

2. The opposing counsel then submits a similar memorandum.

3. The memorandums are submitted to the CA (or the court, if in session) who may prepare additional memorandums covering other points to be covered.

4. The TC then prepares the form for the deposition and it, along with the memorandums, is mailed to the command nearest the deponent under a cover letter with an addressed return envelope and subpoena for a civilian witness, if necessary. If the deposition is to be taken locally, the CA appoints a deposition officer who, together with counsel, takes the deposition.

5. The command receiving the deposition form appoints a deposition officer, counsel for the government and accused, and a reporter. However, if charges have been referred to trial, the accused must consent to the appointment of a second counsel (other than counsel who will represent the accused before the court) to represent him or her.

6. The deposition is then taken.

7. Oral questions and the answers are transcribed verbatim, signed by the deponent, authenticated by the deposition officer, and returned to the TC.

The Interrogatories and Deposition, DD Form 456 (fig. 3-5), illustrates a completed written deposition. Figure 3-6 shows the format to be used in oral depositions.

Figure 3-6.-Sample format for oral deposition.

Figure 3-6-Sample format for oral deposition-Continued.

Figure 3-6.-Sample format for oral deposition-Continued.

Figure 3-6.-Sample format for oral deposith-Continued.